NEWSLETTER – November 2011
Robin Schiller, President
Allen Mendelsohn, Dorith Toledano and Larry Markowitz, Editor(s)
Honourable Judges, Members and Friends,
I am happy to report that our annual Henry Steinberg Memorial Lecture with the Associate Dean, Graduate Studies of McGill, Professor Rosalie Jukier was a resounding success.
On November 30, 2011, thanks to the tireless efforts of one of our board members, Madam Justice Carol Cohen, we have the honour and privilege of welcoming Mr. Justice Ian Binnie of the Supreme Court of Canada. Mr. Justice Binnie’s topic will be: “Corporate Complicity in Abuse of Human Rights”. Mr. Justice Binnie will be introduced by The Honourable Pierre A. Michaud.
Please note that we have introduced a new policy of providing a discount for early registrations. We encourage you all to reserve your place before November 22, 2011.
The evening has been accredited for CLE with the Chambre des Notaires as well as the Barreau. As you know, CLE credits are only available for paid-up members. The dinner invitation and membership application are available through our website and we encourage you to pay and reserve for the evening online.
Many thanks to our generous sponsor McMillan.
We have a lot to celebrate. Our new Chief Justice of the Court of Appeal of Quebec, Madam Justice Nicole Duval Hesler will be honouring us with her presence as will the Chief Justice of the Superior Court of Quebec, the Honourable François Rolland.
We look forward to seeing you at what promises to be an extraordinary evening.
Yours very truly,
Robin Schiller, President
The Lord Reading Law Society
Rosalie Jukier: Backstage at the Palace
On Thursday, October 27th, 2011, the Lord Reading Law Society was honoured to have as its guest speaker, the Associate Dean of McGill University’s Faculty of Law, Professor Rosalie Jukier, who delivered the Society’s Annual Mr. Justice Henry Steinberg Memorial Lecture.
After a kind introduction by McGill University Dean of Law Professor Daniel Jutras, Professor Jukier proceeded to tell us how the late Mr. Justice Steinberg had played a vital role in the beginnings of her academic career. She had written her first article as a professor on the topic of specific performance as a remedy under Quebec law. Not long after its publication, Mr. Justice Steinberg cited Professor Jukier’s article in his 1988 decision in Construction Belcourt Ltée v. Golden Griddle Pancake House Ltd. Even though he had never met Professor Jukier, Mr. Justice Steinberg sent her a signed copy of his judgement and wrote on it, “Thanks for your article”. Being a young professor, Professor Jukier was too intimidated to contact Mr. Justice Steinberg. She regaled the Lord Reading audience by telling us that she has since learned that “judges are just people”. But she did get her first “15 minutes of fame” as a result of being cited by Mr. Justice Steinberg.
The focus of Professor Jukier’s speech to the Society was judicial methodology in a mixed jurisdiction. She had discussed the topic in the summer of 2011 at a Hebrew University conference in Israel. Indeed, it was fitting that a Quebec lawyer should discuss the concept of jurisdictions with blended legal traditions at a conference taking place in Israel, since both Quebec and Israel can be termed “mixed jurisdictions” – each in its own way.
Quebec is a mixed jurisdiction for three reasons: (1) it is bijuridical (civil law and common law coexist), (2) despite being a civilian jurisdiction, Quebec’s Superior Court is a court of inherent jurisdiction, as are the courts in the United Kingdom where, of course, the common law prevails; and (3) judges in Quebec play a role more similar to that played by judges in common law jurisdictions, as opposed to the more inquisitorial role played by judges in, say, continental Europe, where the civil law reigns.
Similarly, Israel is a mixed jurisdiction, albeit for different reasons. Its legal landscape is marked by the historic influences of both the civilian Ottoman Empire and the common law British Mandate. Israel’s “mixity” is expressed in its Basic Law, which states that Israel is both a Jewish and a democratic state. Added to that “mixity” is the application of religious laws in certain spheres, such as family law, as well as the diverse traditions of Israel’s multicultural population.
The use of jurisprudence by the courts of both Israel and Quebec is similar in that courts in both jurisdictions cite authority and use precedents in a common law-like way. As former Canadian Supreme Court Justice Claire L’Heureux-Dubé wrote, in Quebec courts, previous decisions have considerable moral authority even though the civilian tradition dictates that they are not technically authoritative. Indeed, nowadays few doubt the precedential value of Supreme Court cases in Quebec.
Over the years, the style of judicial process in Quebec has evolved. The Superior Court of Quebec has become essentially a court of inherent jurisdiction. For example, the Anton Piller order, by which a court orders a search of premises and the seizure of evidence without prior warning to prevent destruction of relevant evidence, has been applied by the courts of Quebec, despite the concept’s common law origins. A judge in Quebec is more activist than in other civilian jurisdictions and is not simply the “porte-parole de la loi”.
Despite technically falling under the civil law, Quebec procedural law is actually very common law-like in its orientation. For example, the concept of pre-trial discovery is a common law concept at its origin. The role of a judge in Quebec is also very common law-like in that judges here are elevated to the bench from the ranks of lawyers. This contrasts with the purely civilian system that one sees in, say, France, where one may become a magistrat, following studies at the École de magistrature, without ever having been a lawyer. This gives greater status to the judge in our system, in the view of Professor Jukier, and bears greater semblance to the role and status of a judge in common law jurisdictions.
Even arbitral tribunals in Quebec which do not apply the concept of stare decisis, are precedential in the sense that, in practice, they rely on prior awards to guide their decisions. There is a human nature element to Quebec law. The courts in Quebec apply the lessons of the past to solve the problems of the present and to create a body of law with predictability for the future.
Professor Jukier concluded her presentation by citing Mr. Justice Steinberg’s statement to the effect that justice is an ideal that courts try to attain by applying precedential authority, though this ideal is unfortunately not always achieved. However, precedents do provide reasonable and workable solutions to solve problems in society.
An unhappy ending to a case before the courts serves as an incentive to judges, legislators and lawyers to seek better lives for all members of society, and to inspire Tikun Olam in law and in life. Professor Jukier reminded the members of the Society that to aim for such inspiration is a great way to honour the memory of Mr. Justice Henry Steinberg.
Following Professor Jukier’s speech, Society Communications Director Allen Mendelsohn thanked our guest speaker. The late Mr. Justice Steinberg was a friend of the Mendelsohn family and Allen had also worked with Professor Jukier during his studies at McGill’s Faculty of Law, thus making Allen the ideal person to thank our guest speaker, which he did in a very eloquent manner.
Young Bar Cocktail – Save the date!
Alyssa Yufe and Lawrence Witt
Alyssa Yufe and Lawrence Witt
Young Bar Committee
News from the Mishpuchah
- To Society member David Collier on being named Judge of the Superior Court
- To Past President Suzanne Costom, who was honoured as a Woman of Action by the Israel Cancer Research Fund
- To Society member Richard Yufe on being named Honourary Consul to Trinidad and Tobago